As I’m constantly informed by law students, baby lawyers and academics, here and on the twitters (only because I don’t Facebook), I am a mean and horrible old man for not being woke, a word I’m not allowed to use, to the feelz of the marginalized. I never ask for their preferred pronouns, and despite the ABA trying desperately to make that a reason for disbarment, what would it hurt to cry at the horrifying and exhausting discrimination that pervades the law?

Our clients want us to defend them. While there will be some who are sensitive to such matters, there is no one in the holding pens who wouldn’t trade freedom for use of their preferred pronouns. They don’t want to be deeply understood; they want to be represented by a lawyer who is more concerned about their rights under the Fourth Amendment than their feelings under the Fourteenth.

No matter what you discuss in Law and Critical Deviant Sexuality class at Yale Law School, you’re given a few minutes to gather the information necessary to save a client’s life, to get the client bail or know whether to take the plea offer. You can spend those few minutes on things that you feel deeply about or things that they feel deeply about, like beating the rap.

And here’s the kicker: most of the people you will represent will be minority, poor, male and, yes, guilty, to some greater or lesser extent. Like me, they too are not woke. Even if they are, they don’t give a damn about it at the moment, and want you to be a tough lawyer focused only on what they need rather than your feminist agenda or transsexual sensitivity.

Indeed, nothing will get them raped quicker in jail than your trying to make them look like they want it from that big guy, Bubba. Guess what? They really don’t want to get raped because of your feelz.

As for Squawk’s “girl lawyer,” that’s not a gender referenced, binary or otherwise, not that the defendant gives a hoot about his lawyer’s genderfluid issues. That “girl lawyer” can be female, male or anywhere in between. because the defendant in the tank only gives a damn about you as a lawyer, and whether you have the balls to do what’s needed to zealously defend him.

And that, kidz, is our only job, no matter how cool you look in your pink pussy hat.

ABA is destroying the profession, one brain cell at a time. Day before yesterday, one of their membership pushers called about a “six month free membership” and we had a nice (but short) discussion of why I refused to accept it.

I should have asked for that. That one probably would have thrown him off-script (but at the cost of feeding his delusion that he knows more about the ABA than people who were members longer than he has been alive).

“Woke” is Marxist Class Consciousness relabeled with a hip new name. If you weren’t blinded by your cis male privilege, you would realize your zealous advocacy is aggression and your commentary hurtful​! We will now use your blog for our 5 Minutes of Hate each day.

I write this comment carefully. It is not intended to be snarky nor do I mean to express an opinion for cases presently before me or which may come before me in the future.

In some cases, for example, those involving male prisoners seeking to be treated as females (as by requesting hormone therapy or reassignment surgery), a judge has a pronoun problem. Is such a male prisoner (biologically speaking) properly referred to by a judge as “he” or “she?”

This is not a mere question of grammar. Linguistically, the choice of the pronoun by a judge could be understood by litigants or other readers as taking sides. This writing problem is compounded by the science.

As the American Psychiatric Association tells us, “Gender dysphoria involves a conflict between a person’s physical or assigned gender and the gender with which he/she/they identify.” But one must be careful. That same association notes: “Gender dysphoria is not the same as gender nonconformity, which refers to behaviors not matching the gender norms or stereotypes of the gender assigned at birth.”

“The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) provides for one overarching diagnosis of gender dysphoria with separate specific criteria for children and for adolescents and adults.” As I understand it, the proper diagnosis of gender dysphoria excludes gender nonconformity.

As a result of the foregoing, I have been discussing with my career law clerks whether to avoid pronouns altogether. Unfortunately, doing makes opinion writing both difficult and ponderous. It may even make opinions inaccurate. This is a conundrum that I have yet to solve to my satisfaction.

All the best.

RGK

PS I hope this is not viewed by you and others as a dive down the dreaded rabbit hole. If it is, I apologize in advance.

The problem you raise occurs only under certain circumstances, and under those circumstances, it’s an understandable concern. As I’ve argued before, it could be avoided by standard English usage, but that, by definition, fails to address the problem of an expectation of non-standard, if not completely individualized, word choice. But then, individualized word choice produces an incomprehensible opinion, and it’s essentially impossible to avoid pronouns altogether.

As the former (standard English) is universally understood, if offensive to some, and the latter (individualized use of pronouns) is incomprehensible but accommodating of the defendant, the judge is caught in an impossible conundrum. Too bad there isn’t a Big Court to instruct district judges how to handle such problems such that the burden of being politically incorrect or viewed as biased is removed and they are constrained to issue opinions in a manner comprehensible to all.

Respectfully, I’m not a judge and have no aspirations thereto. But Judge Wilbur would write the opinion in standard English usage, and then footnote the first mention of the transgendered individual with an explanation closely correlating to your post above.

You can’t please everyone. I believe your first obligation is to those who may read your opinion and their need to fully comprehend it.

Hypothetically speaking, if a prisoner who was born a male has been diagnosed under the DSM-5 by objective physicians as suffering from gender dysphoria, how would (should) your footnote read? What standard English pronoun would be used? All the best.

I’m going to jump into Judge Wilbur’s thread to add my two cents. Assuming a diagnosis, you then have two issues. Do you use the gender pronoun reflecting dysphoria or some other, made up, pronoun. With a diagnosis, it would make sense to drop a footnote that the pronouns used reflect the diagnosis and that would cover any confusion on that end.

If, on the other hand, the defendant argued in favor of made-up pronouns, I think Judge Wilbur should drop a footnote saying that, for the sake of clarity, he will use the pronoun of the dysphoric gender, but otherwise remain within standard English protocols, not out of any views as to the propriety of using defendant’s preferred pronouns, but for the sake of clarity for any readers who might otherwise find it confusing and to assure full preservation of the defendant’s rights on appeal.

Taking the second question first, I’d have to choose ‘he” or “she”, one or the other, until we come up with a separate pronoun for these persons. My first inclination would be to choose “he”, as that remains his biological gender when I’m writing. But after brief reflection I would choose the pronoun the defendant prefers (assuming it is “he” or “she”, i.e. standard English), but again explain why in a footnote.

As to the footnote itself, I might hypothetically write the following: “In this case a male defendant seeks to be treated as a female and has requested hormone therapy and reassignment surgery. This presents a problem for the court as it is vital to avoid confusion by readers of this opinion as to whom I am referring where the defendant is concerned. The defendant remains a male by birth, yet identifies with the female gender. For purposes of this written opinion I have chosen to refer to the defendant with female pronouns. This choice should not be taken as reflecting any animus whatsoever towards any party or the defendant or her self-identification of gender. But this usage will remain consistent throughout the opinion.”

Micro-aggressions are for sissies (male, female, or gender fluid ). I greatly prefer macro- aggressions. That way, I cannot be mistaken for anything other than a mean ass old bastard who rails against modernity. All the best.

RGK

PS. Your name causes me to recall that Taoists are by definition sissies.

There probably is one person in the holding pen in a large jail who would trade freedom for use of preferred pronouns. That person was probably arrested for some act of vandalism in protest against others for not using preferred pronouns. That person deserves to stay there.

Scott – Many thanks for the shout-out, which has skyrocketed our readership from an average of 9 into the dazzlingly high two figures. As for our species/gender identity, we insist that we’re a neutered macaw with absolutely no connection to any behemoth public defender organization in NY City. That said. . . we might be needing a labor-side employment lawyer pretty soon. . . Best, A. Squawk

The ABA proposed rules do seem like Nero fiddling while Rome is burning. I feel like respect for Lawyers and the profession is eroding. Individual rights….the kind that don’t deal with gender and snowflakes are being run over I also think there has been an unprecedented move by the police in many cities and towns across America to be unaccountable. 10 years ago, I never would have thought attorneys would be arrested and tasered by police in court for representing their clients. I know those are isolated incidents, there are no reprocissuons for the transgressions.

I know the profession is not all doom and gloom. It would be nice to hear the ABA getting behind something other than SJ.

Scott H. Greenfield

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